The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6346
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              April 22, 2021
                                ___________
 
 Introduced  by  Sen.  RIVERA -- read twice and ordered printed, and when
   printed to be committed to the Committee on Health
 
 AN ACT to amend the public health law, in relation to establishing stan-
   dard nursing home staffing levels
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  public health law is amended by adding a new section
 2895-b to read as follows:
   § 2895-B. NURSING HOME STAFFING LEVELS. 1.  DEFINITIONS.  AS  USED  IN
 THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A)  "CERTIFIED  NURSE  AIDE" MEANS ANY PERSON INCLUDED IN THE NURSING
 HOME NURSE  AIDE  REGISTRY  PURSUANT  TO  SECTION  TWENTY-EIGHT  HUNDRED
 THREE-J OF THIS CHAPTER.
   (B) "LICENSED NURSE" MEANS A REGISTERED PROFESSIONAL NURSE OR LICENSED
 PRACTICAL  NURSE LICENSED PURSUANT TO ARTICLE ONE HUNDRED THIRTY-NINE OF
 THE EDUCATION LAW.
   (C) "STAFFING HOURS" MEANS THE HOURS REPORTED BY A NURSING HOME TO THE
 FEDERAL CENTERS FOR MEDICARE AND MEDICAID SERVICES THROUGH  THE  PAYROLL
 BASED JOURNAL FOR LONG-TERM CARE FACILITIES.
   (D)  "NURSE  AIDES" MEANS ANY PERSON WHO IS INCLUDED IN THE NURSE AIDE
 HOUR COMPONENT OF THE PAYROLL BASED JOURNAL FOR LONG-TERM  CARE  FACILI-
 TIES BUT HAS NOT YET BEEN CERTIFIED AS A CERTIFIED NURSE AIDE.
   2.  STAFFING  STANDARDS.  (A)  THE  COMMISSIONER SHALL, BY REGULATION,
 ESTABLISH STAFFING STANDARDS FOR NURSING HOME MINIMUM STAFFING LEVELS TO
 MEET APPLICABLE STANDARDS OF SERVICE AND CARE AND TO PROVIDE SERVICES TO
 ATTAIN OR MAINTAIN THE HIGHEST PRACTICABLE PHYSICAL, MENTAL, AND PSYCHO-
 SOCIAL WELL-BEING OF EACH RESIDENT OF THE FACILITY. COMPLIANCE SHALL  BE
 DETERMINED  QUARTERLY  BY  COMPARING  THE DAILY AVERAGE OF THE NUMBER OF
 HOURS PROVIDED PER RESIDENT, PER DAY,  USING  THE  FEDERAL  CENTERS  FOR
 MEDICARE  AND MEDICAID SERVICES PAYROLL BASED JOURNAL AND THE FACILITY'S
 AVERAGE DAILY CENSUS ON A DAILY BASIS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11046-03-1

 S. 6346                             2
 
   (B) THE COMMISSIONER SHALL ESTABLISH, BY REGULATION,  CIVIL  PENALTIES
 FOR  FACILITIES  OUT  OF  COMPLIANCE  WITH MINIMUM STAFFING LEVELS. SUCH
 REGULATIONS SHALL INCLUDE A RANGE OF PENALTIES TO ACCOUNT FOR MITIGATING
 FACTORS WHICH SHALL INCLUDE:
   (I)  EXTRAORDINARY  CIRCUMSTANCES  FACING THE FACILITY, INCLUDING, BUT
 NOT LIMITED TO, WHETHER THE FACILITY  HAS  SUFFERED  THROUGH  A  NATURAL
 DISASTER  OR  OTHER  CATASTROPHIC EVENT, AN OFFICIALLY DECLARED NATIONAL
 EMERGENCY, OR STATE OR MUNICIPAL EMERGENCY DECLARED PURSUANT TO  ARTICLE
 TWO-B OF THE EXECUTIVE LAW, WHICH HAS BEEN INITIALLY DECLARED SUBSEQUENT
 TO  THE  EFFECTIVE  DATE  OF  THIS  SECTION, OR OTHER SUCH CONDITIONS OR
 UNFORESEEN CIRCUMSTANCES AS DETERMINED BY THE COMMISSIONER;
   (II) THE FREQUENCY AND NATURE OF NON-COMPLIANCE; AND
   (III) THE EXISTENCE OF AN ACUTE LABOR SUPPLY SHORTAGE WITHIN A PARTIC-
 ULAR REGION.  WHEN DETERMINING IF THERE IS AN ACUTE LABOR SUPPLY  SHORT-
 AGE  WITHIN A SPECIFIC REGION IN A SPECIFIC QUARTER, OR A SHORTER PERIOD
 OF TIME AS DETERMINED BY THE COMMISSIONER, THE COMMISSIONER  SHALL  TAKE
 INTO  CONSIDERATION  THE  FOLLOWING  FACTORS:  REGIONAL  LABOR SUPPLY OF
 AVAILABLE CERTIFIED NURSE AIDES, LICENSED PRACTICAL  NURSES  AND  REGIS-
 TERED  NURSES;  REGIONAL PAY RATES FOR THE RELEVANT TITLES AS DETERMINED
 BY THE FEDERAL DEPARTMENT OF LABOR,  BUREAU  OF  LABOR  STATISTICS;  AND
 EVIDENCE THAT THE FACILITY ATTEMPTED TO PROCURE SUFFICIENT STAFFING.
   (C) AT LEAST THIRTY DAYS BEFORE ANY ACTION IS TAKEN BY THE COMMISSION-
 ER  UNDER PARAGRAPH (B) OF THIS SUBDIVISION, THE COMMISSIONER SHALL POST
 THE ASSESSED PENALTIES, AND ANY MITIGATING FACTORS THAT WERE  CONSIDERED
 IN ASSESSING THE PENALTY ON THE DEPARTMENT'S WEBSITE.
   (D) IN DETERMINING WHETHER A NURSING HOME HAS VIOLATED ITS OBLIGATIONS
 UNDER THIS SECTION, IT SHALL NOT BE A DEFENSE THAT SUCH NURSING HOME WAS
 UNABLE  TO SECURE SUFFICIENT STAFF IF THE LACK OF STAFFING WAS FORESEEA-
 BLE AND COULD BE PRUDENTLY PLANNED FOR,  OR  INVOLVED  ROUTINE  STAFFING
 NEEDS  THAT  AROSE  DUE  TO TYPICAL STAFFING PATTERNS, TYPICAL LEVELS OF
 ABSENTEEISM, OR TIME OFF TYPICALLY APPROVED BY THE  EMPLOYER  FOR  VACA-
 TION, HOLIDAYS, SICK LEAVE, AND PERSONAL LEAVE.
   (E)  A  CIVIL  PENALTY  SHALL  NOT BE IMPOSED UNDER THIS SECTION UNTIL
 AFTER APRIL FIRST, TWO THOUSAND TWENTY-TWO;
   (F) EVERY NURSING HOME SHALL:
   (I) COMPLY WITH THE STAFFING STANDARDS UNDER THIS SECTION; AND
   (II) EMPLOY SUFFICIENT STAFFING LEVELS TO MEET APPLICABLE STANDARDS OF
 SERVICE AND CARE AND TO PROVIDE SERVICE AND CARE AND TO PROVIDE SERVICES
 TO ATTAIN OR MAINTAIN THE  HIGHEST  PRACTICABLE  PHYSICAL,  MENTAL,  AND
 PSYCHOSOCIAL WELL-BEING OF EACH RESIDENT OF THE FACILITY.
   (G)  STAFFING STANDARDS ESTABLISHED UNDER THIS SUBDIVISION SHALL, AT A
 MINIMUM, BE THE STAFFING STANDARDS ESTABLISHED UNDER  SUBDIVISION  THREE
 OF THIS SECTION.
   (H)  THE  MINIMUM  STAFFING  STANDARD  INCLUDES  THE  HOURS  WHICH ARE
 REQUIRED TO BE REPORTED BY A NURSING HOME TO  THE  FEDERAL  CENTERS  FOR
 MEDICARE  AND  MEDICAID  SERVICES  THROUGH THE PAYROLL BASED JOURNAL FOR
 LONG-TERM CARE FOR CERTIFIED NURSING ASSISTANTS AND LICENSED NURSES.  IN
 DETERMINING  COMPLIANCE  WITH THE STAFFING STANDARDS UNDER THIS SUBDIVI-
 SION, AN INDIVIDUAL SHALL NOT BE COUNTED WHILE PERFORMING ADMINISTRATIVE
 SERVICES AS DEFINED IN THE PAYROLL  BASED  JOURNAL  FOR  LONG-TERM  CARE
 FACILITIES.
   3. STATUTORY STANDARD. (A) BEGINNING JANUARY FIRST, TWO THOUSAND TWEN-
 TY-TWO  EVERY  NURSING  HOME SHALL MAINTAIN DAILY AVERAGE STAFFING HOURS
 EQUAL TO 3.5 HOURS OF CARE PER RESIDENT PER DAY  BY  A  CERTIFIED  NURSE
 AIDE,  A  LICENSED  NURSE OR A NURSE AIDE; PROVIDED THAT OUT OF SUCH 3.5
 HOURS, NO LESS THAN 2.2 HOURS OF CARE PER  RESIDENT  PER  DAY  SHALL  BE

 S. 6346                             3

 PROVIDED BY A CERTIFIED NURSE AIDE OR A NURSE AIDE, AND NO LESS THAN 1.1
 HOURS  OF  CARE  PER  RESIDENT  PER  DAY SHALL BE PROVIDED BY A LICENSED
 NURSE.
   (B)  BEGINNING JANUARY FIRST, TWO THOUSAND TWENTY-THREE AND THEREAFTER
 EVERY NURSING HOME SHALL MAINTAIN DAILY AVERAGE STAFFING HOURS EQUAL  TO
 3.5  HOURS  OF  CARE PER RESIDENT PER DAY BY A CERTIFIED NURSE AIDE OR A
 LICENSED NURSE; PROVIDED THAT OUT OF SUCH 3.5 HOURS, NO  LESS  THAN  2.2
 HOURS  OF  CARE  PER  RESIDENT  PER DAY SHALL BE PROVIDED BY A CERTIFIED
 NURSE AIDE, AND NO LESS THAN 1.1 HOURS OF  CARE  PER  RESIDENT  PER  DAY
 SHALL BE PROVIDED BY A LICENSED NURSE.
   4. PUBLIC DISCLOSURE OF STAFFING LEVELS. (A) A NURSING HOME SHALL POST
 INFORMATION  REGARDING  NURSE  STAFFING THAT THE FACILITY IS REQUIRED TO
 MAKE AVAILABLE TO THE PUBLIC UNDER SECTION TWENTY-EIGHT  HUNDRED  FIVE-T
 OF  THIS CHAPTER. INFORMATION UNDER THIS PARAGRAPH SHALL BE DISPLAYED IN
 A FORM APPROVED BY THE DEPARTMENT AND BE POSTED IN  A  MANNER  WHICH  IS
 VISIBLE  AND  ACCESSIBLE  TO RESIDENTS, THEIR FAMILIES AND THE STAFF, AS
 REQUIRED BY THE COMMISSIONER.
   (B) A NURSING HOME SHALL POST A SUMMARY OF THIS SECTION,  PROVIDED  BY
 THE  DEPARTMENT,  IN PROXIMITY TO EACH POSTING REQUIRED BY PARAGRAPH (A)
 OF THIS SUBDIVISION.
   § 2. If any provision of this act, or any application of any provision
 of this act, is held to be invalid, or to  violate  or  be  inconsistent
 with  any  federal law or regulation, that shall not affect the validity
 or effectiveness of any other provision of this act,  or  of  any  other
 application  of  any  provision  of  this act, which can be given effect
 without that provision or application; and to that end,  the  provisions
 and applications of this act are severable.
   § 3. This act shall take effect immediately.